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Explain the meaning of the coincidence (contemporaneity) rule.

The contemporaneity rule is the coincidence of actus reus and mens rea and means that the two elements must take place at the same time.

Grade: A-C | £0.00.

Explain the meaning of the coincidence (contemporaneity) rule.

In the vast majority of criminal offences there are two elements which need to be proven in order to establish criminal liability, the actus reus or guilty act and the appropriate level of mens rea or guilty mind. It is an established rule that these two elements must coincide. This is sometimes known as the contemporaneity rule meaning that the two elements must take place at the same time. In other words the defendant must, for instance, be dishonest at the time he takes property to be liable for theft.

In most cases the question of coincidence will be a matter of common sense and probably not cause the prosecution or any jury too much difficulty. However the matter has been raised in a number of cases and as a result the courts can be seen to have adopted a flexible approach to the issue, developing ways of finding coincidence of actus reus and mens rea when the acts take place over a period of time and when they form a chain of events.

Continuing Acts:

In Fagan v MPC (1969) the defendant was directed by a police officer to pull over at the kerb and stop his car. The defendant did so but drove over the policeman's foot, the defendant maintained that this was accidental. This may well have been the case but when he was told to remove the car he swore at the officer and switched off the engine. The issue as to whether the actus reus coincided with the mens rea was raised at an appeal against conviction for assaulting a police officer in the execution of his duty.

The defendant argued that there lacked coincidence because when he drove on to the policeman's foot, that is to say at the time of the actus reus, there was no mens rea as the incident was purely an accident. The subsequent act of failing to remove the car, doing nothing in other words, meant that when he formed the mens rea the actus reus was missing because it amounted to an omission, and as such could not give rise to liability. This is so even if the failure to remove the car was intentional.

Nor could coincidence occur later when the defendant switched off the engine and kept the car on the officer's foot because this amounted to a separate act and an omission. An omission ordinarily does not give rise to criminal liability.

The Court of Appeal took the view that the subsequent failure to remove the vehicle was not a separate act but a continuous act and not an omission. The result being that it was easier to see that at some point in the defendant's conduct and actions he must have acted in such a way to cause harm to the police officer – so there would have been coincidence at some point. The Court of Appeal upheld the conviction stating that, by driving on the policeman's foot and staying on his foot, it formed part of a continuing act.

In DPP v Ray (1973) the House of Lords preferred to look upon the matter as a 'continuing act or conduct'. The case concerned the defendant's conduct in making off without payment and his subsequent conviction under Section 16 of the Theft Act 1968. The accused had remained seated in the restaurant even though he realised he was unable to pay the bill. By remaining at the table and creating the impression and continuing to create the impression that he was an honest customer and had every intention to pay he misled the staff at the restaurant. The waiters believed there was no problem and they left the dining area unattended. The defendant had waited for such an opportunity and as soon as the waiter had gone out of the restaurant to the kitchen he ran off. The majority of the House saw this as part of the 'defendant's continuing conduct' and upheld his conviction.

It is perhaps worth mentioning that the concept of coincidence should not be considered as an isolated principle but should be considered in a common sense practical way in light of all the circumstances and in such a way that would make sense to the jury. A victim will consider that they had been subjected to force and theft, and in their mind that will amount to a robbery – they may not be remotely interested in any theoretical notion of coincidence.

This was illustrated in R v Hale (1978) which concerned the offence of robbery where the application of force and the theft took place in different locations. It was not possible to be sure about the timing but the Court of Appeal accepted that they were concerned with a continuing act and upheld the conviction. The defendant and his accomplice were wearing stocking masks and forced their way into the victim's house. The defendant put his hand over the victim's mouth to keep her quiet and then later tied her up. The accomplice went upstairs and took a jewellery box from a bedroom. The defendant tried to argue that the theft was complete by the time the victim was tied up and gagged and not immediately before or at the time of the stolen the jewellery and as a result robbery could not be charged. The Court disagreed and took the view that appropriation was a continuous act and the matter had been properly left for the jury to decide.

Chain of events:

In the earlier case of R v Thabo Meli (1954), a slightly different approach was adopted but with a similar effect. In that case a criminal gang badly beat the victim and, believing him to be dead, threw him over a cliff. It transpired that the victim had still been alive at the time but subsequently died of exposure. Again the issue in the case was that there was no coincidence. In this case the trial judge adopted the concept that there could be a series of acts in which the necessary mens rea would have been present at some point and that this satisfied the requirement for coincidence. The Privy Council decided to support this approach and the appeal against conviction was dismissed.

More recently in R v Le Brun (1991) the Court of Appeal upheld the defendant's conviction for manslaughter and took the view that the original assault and subsequent blow which caused the death were part of a series of acts. In this case the defendant had quarrelled with his wife and knocked her out. Whilst he was attempting to remove his wife from the scene he dropped her, causing her to hit her head on a kerb stone which brought about her death.

The fact that the courts have adopted a flexible approach as opposed to a narrow interpretation of the need for contemporaneity seems to have stood up to scrutiny. To hold that what happened amounted to a separate actus reus and mens rea, would have taken the criminal justice system down a technical road which society and the victims and their families may have found hard to support.

Why do we need such a rule? Surely all that needs to be established is that the accused caused the injury or harm? This may be too simplistic an approach and fail to identify those cases in which the actus reus was carried out when the accused was in a different state of mind from the mens rea required for the offence charged. For example, it might be possible for the defendant to cause harm in circumstances which amount to an accident at one point in time but for the defendant to form a hostile attitude towards the victim at some later time. It would be extremely difficult establish the level of blameworthiness appropriate in such cases and the jury would be left floundering as to what approach to take.